Google loses landmark defamation appeal

In a long-awaited decision, a majority of the Full Court of the South Australian Supreme Court has dismissed Google’s appeal against a decision that it defamed an individual, Dr Janice Duffy, by publishing defamatory material about her in its search results: Google Inc v Duffy [2017] SASCFC 130.

A tale of psychic readings and broken hearts

After meeting a man in New York, Dr Duffy sought relationship advice from internet psychics. Multiple internet psychics provided positive readings and reassured her about the prospects of a romantic relationship. However, the readings were wrong and a relationship never eventuated. Dr Duffy was dissatisfied and posted articles about the psychics on a website called the “Ripoff Reports”. The psychics responded and posted articles describing her as a “psychic stalker”.

When internet users searched for information about Dr Duffy, Google’s search results identified, hyperlinked to, and produced paragraphs of text from, the Ripoff Report articles, including statements that Dr Duffy was a “psychic stalker”.

In September 2009, after discovering the psychics’ articles, Dr Duffy asked Google to remove paragraphs and links from its search results. 16 months later, when Google had failed to do so, Dr Duffy commenced proceedings, alleging that Google had defamed her. In March 2011, after proceedings had commenced, Google finally removed paragraphs and links to an initial group of articles and webpages.

A person who participates in a publication may be a publisher

One element of the tort of defamation is that the defendant has participated in the publication to a third party of a body of work containing the defamatory material. Kourakis CJ said that facilitating publication may constitute participation.

Google’s search results contained unjustified defamatory imputations

The trial judge found that Google’s search results included defamatory materials, including the following paragraph.

The trial judge held the search results and Ripoff Report articles made a number of defamatory imputations, including that Dr Duffy “stalks psychics” and “harasses psychics by persistently and obsessively pursuing them”.

Google was a secondary/subordinate publisher

The Full Court agreed with the trial judge’s conclusion that Google was a secondary/subordinate publisher of the defamatory material. Google intended the search engine to produce the results it produced from other publications and pages on the internet, because the system had been designed to operate in that way. Google’s conduct was sufficient to amount to a publication, because Google had facilitated the reading of the defamatory material in an indispensable, substantial and proximate way. It did not matter that Google had not accepted or approved the defamatory material on the Ripoff Reports website.

Kourakis CJ and Hinton J thought that a Google search result was analogous to placing a post-it note on a book, which directed a person to a particular page, and provided that person with some information about what he or she would find on that page.

Kourakis CJ considered the search results incorporated the Ripoff Report articles because they abstracted sufficient information to inform searchers about the relevant articles, Google repeated and drew attention to the defamatory imputations in the articles, and Google provided instantaneous access to the articles via hyperlinks.

Google failed to justify the imputations

Google unsuccessfully argued that a reasonable internet user would not understand the search results to convey a defamatory meaning, as they would understand them to be “automatically generated abstracts indicating where material that is possibly relevant to their interest might be found”. Kourakis CJ rejected that argument, finding that Google’s search engine did not change the meaning of the words in the search results.

Google failed to justify the defamatory imputations because it failed to establish that “Dr Duffy persistently did, or that she had a strong proclivity to, make unlawful or improper posts on the internet which were calculated to shame or denigrate psychics or cause them substantial distress”.

With one exception, Kourakis CJ considered that Dr Duffy’s articles contained only robust criticism. They were not improper and did not amount to stalking. The one exception concerned three posts in which Dr Duffy falsely said that one of the psychics was responsible for the death of a woman. Kourakis CJ considered this was a “reprehensible” and “improper falsehood intended to denigrate and shame” the psychic. Although Kourakis CJ considered these posts amounted to stalking, as each post repeated the same claim, they only constituted a “single act” of stalking. As the relevant imputation was that Dr Duffy stalked more than one psychic, or stalked one psychic on more than one occasion, the posts did not justify the imputation that Dr Duffy’s stalking was “persistent or obsessional or even that Dr Duffy had a proclivity to stalk psychics.”

Google’s publication was not innocent

The defence of “innocent dissemination” protected Google from liability, but only for a limited period of time. Google could rely on the defence up to date on which it received notice of the defamatory material from Dr Duffy. The defence also protected Google for a period of time after it received such notice but only for a period which was reasonable for Google to remove the defamatory material from its search results. However, it took Google 16 months to do so, which went beyond a reasonable period of time.

Majority found Google could not rely on statutory qualified privilege

There are important differences between the common law defence of qualified privilege and the statutory defence qualified privilege. Only the latter was in issue in this appeal.

Section 28(1) of the DefamationAct2005 (SA) (Act) provides a defence where the recipient has an interest in having information on a subject, the defamatory matter is published to that recipient in the course of giving him or her information on that subject, and the publisher’s conduct is reasonable in the circumstances.

The “interest” referred to must be a legitimate and proper interest in the defamatory material “as a matter of substance apart from its mere quality as news”, and not simply mere curiosity or prurient interest.

Majority held that Google could not rely on statutory qualified privilege

The trial judge found that Google had indiscriminately published the search results “to anyone who wanted to search for references on the web to Dr Duffy regardless of their purpose or interest” and had “not confined” any publication to “any specific type of information nor tailored [it] to the particular interest of” any recipient.

Peek J agreed with these findings. His Honour rejected, as “deeply flawed”, Google’s contention that “by entering a search term”, a searcher “indicated an interest in accessing information relevant to that term”.

Peek J also considered the mere fact that the defamatory material was published at the same time as the searchers were given information about the relevant subject, did not mean the defamatory material was published “in the course of” providing that information, as required by section 28. The words “in the course of” require the matter to be “both relevant and ‘reasonably appropriate’ (in the sense of proportionate)’ to the particular occasion”, which requires a sufficient connection between the defamatory matter and the relevant subject.

Peek J considered that each publication gave rise to a separate cause of action. Google had to establish qualified privilege in respect of each publication. It was not enough for Google to show that only some recipients had been interested in Dr Duffy’s dispute with the psychics and that interest had led them to make the searches. His Honour also considered that some of the searches may have been undertaken out of “mere curiosity”, which, as mentioned above, is not a sufficient “interest” to establish statutory qualified privilege.

There was no direct evidence of the interest which the searchers had in making the relevant searches. Hinton J did not accept an inference could be drawn that the searchers were prompted by a desire to follow the controversy involving Dr Duffy and the psychics. His Honour also held that, even if some of the searchers were in or considering a professional, commercial, employment or personal association with Dr Duffy, that did not give them an interest “in all information that may be obtained about” her. The fact they contemplated or shared a relationship did not mean “the information is germane to the fabric” of that relationship.

Additionally, even if all recipients had had a legitimate interest in receiving the information, the majority held that Google’s conduct had not been reasonable in the circumstances.

Google had waited 16 months after receiving notice of the defamatory material from Dr Duffy, and until after Dr Duffy commenced proceedings, before it removed the first links and paragraphs to and from the Ripoff Reports. Peek J described this process as Google “moving from complaining customer mode to litigation mode”.

There were various inconsistencies in Google’s correspondence with Dr Duffy, including a false statement that Google could not remove the material without the cooperation of the relevant webmasters.

The publishing of the material was not in the public interest.

Google was a large commercial enterprise and it had chosen and introduced its automated system for commercial profit.

The defamatory imputations were serious, particularly in light of the trial judge awarding $100,000 (plus interest) for non-economic loss defamation, which Peek J noted was “substantial”; it was an award which Google had not appealed.

Google did not add any disclaimers to the information after receiving notice and it was apparent that Google failed to make any attempt to assess the credibility and reliability of the authors of the relevant material.

Kourakis CJ disagreed in relation to statutory qualified privilege

In dissent, Kourakis CJ held that Google could rely on the defence of qualified privilege.

His Honour found that Google had only published the information to people who searched for Dr Duffy and he disagreed that meant Google had published the information indiscriminately. His Honour said this was not a case of “mass media publication” in which the information was published “to the world at large”. Rather, his Honour considered the information had been “tailored and exclusive to [a] particular request”.

Kourakis CJ considered the internet searchers could be divided into three groups.

Firstly, searchers who were either in or considering entering a professional, commercial, employment or personal engagement with Dr Duffy.

Secondly, searchers who use internet psychics or who support or are critical of them.

Finally, his Honour thought it was possible there were some searchers who did not fall into the either of the first two groups who may have “aimlessly searched for Dr Duffy’s name”. However, his Honour considered the evidence did not “disclose any reason to suspect” any such people existed and the “possibility” that any “completely disinterested person read the impugned paragraphs is purely speculative”.

His Honour determined this was not a case in which it could be inferred that the recipients had “no more than idle curiosity” in the defamatory material. The first group had the required interest in the material, according to Kourakis CJ, because the information could have legitimately affected their decisions about entering into a relationship with Dr Duffy. His Honour held that the second group “plainly” had the required interest as well, because they would be interested in the controversy involving Dr Duffy and the psychics. His Honour thought his conclusions were supported by the fact that, as mentioned above, Google had only published the information in response to particular searches.

Kourakis CJ also disagreed with the majority’s view and found that Google acted reasonably.

As mentioned above, in Kourakis CJ’s view, Google had not published the information indiscriminately.

Internet search engines provide a substantial public benefit and, generally speaking, by operating such a service, Google was acting reasonably.

As a general rule, the referencing of material on the internet is reasonable, and Google’s search engine is designed to provide a close match between at least the first few pages of search results and a searcher’s query.

A search engine is a referencing service and the operator does not exercise any judgment on the reliability of the information contained in its search results. His Honour said there “is a strong public interest in the expeditious provision of search results” and “the requirement to verify information and distinguish between sources and between levels of certainty are necessarily ameliorated when expedition is desirable”.

Google’s decision not to block the material after receiving notice, “could only be characterised as unreasonable”, according to Kourakis CJ, if there had been good reasons for Google “to think that the material was being published to persons who had no interest in receiving it”. His Honour was not satisfied some searchers had only idle curiosity.

In relation to Kourakis CJ’s comments, it is worth noting that Peek J considered that the question of reasonableness “must be tested as between the publisher and the person defamed”, “not just whether the publisher behaved “reasonably” having regard to the conditions of the enterprise in the context of which the publishing occurs”.

The cross-appeal on damages was unanimously dismissed

The Court unanimously dismissed Dr Duffy’s cross-appeal on the quantum of damages.

Kourakis CJ said that quantification is a discretionary exercise and the Full Court could only interfere with the trial judge’s decision if Dr Duffy established the award was “manifestly inadequate”. His Honour was not convinced that was the case, for reasons including that the information was only published to those who searched for Dr Duffy and the imputation that Dr Duffy was a psychic stalker was “not the most serious of defamations”, “given the widespread community debate and division over the conduct of psychics”. The trial judge held Dr Duffy had not suffered any actual loss of earnings by reason of reputational damage and that, although a loss of earning capacity can attract an award of damages, Kourakis CJ said the evidence of any such loss was too speculative.

His Honour also found that neither Google’s failure to apologise, nor its decision to continue a plea of justification, warranted an award of aggravated damages. Given the complexity of the case and the novelty of Dr Duffy’s claims, Google’s conduct did not evidence “bad faith or improper or unjustifiable behaviour”.

Key lessons from this decision

As Australia has uniform defamation legislation, this decision has broad relevance outside South Australia.

The decision establishes at an appellate court level that the operator of an internet search engine can be a secondary/subordinate publisher of defamatory material on a third party’s website even though the operator may not know of that material or its defamatory nature and regardless of whether the operator has accepted or approved the relevant content.

The decision reinforces the potential liability in defamation of publishers, including social media platform operators, who host and publish defamatory content posted by users or other third parties.

A significant issue arising from the decision is the risk that it will have a chilling effect on freedom of expression. Hinton J appeared sceptical about the proposition, but his Honour flagged the possibility that this could be an area requiring parliamentary intervention.